The Real Story Behind “Because of Sex”

One of the most powerful phrases in the Civil Rights Act is often viewed as a malicious joke that backfired. But its entrance into American law was far more savvy than that.

Portrait of Howard W. Smith, member of the United States House of Representatives.
Rep. Howard W. Smith. U.S. Congress/Wikipedia

The Supreme Court’s decision on Monday in Bostock v. Clayton County—­which extended employment discrimination protection to LGBTQ people based on Title VII of the 1964 Civil Rights Act—hinged on the briefest of phrases: “because of sex.” Among those with a taste for historical anecdote, it’s long been passed down that this language was added to the bill because segregationist Rep. Howard Smith, D-Virginia, thought that it would sound so ridiculous that it would sink the legislation’s chances. (It’s a good story. Look at that racist troll self-own!)

But that narrative, enjoyable though it may be, is not quite complete, wrote Christina Wolbrecht, political scientist and author of The Politics of Women’s Rights: Parties, Positions, and Change, in a Twitter thread. “Smith later claimed he introduced the ‘sex’ amendment as a joke,” she wrote. “Yes, it was introduced by a segregationist … but BECAUSE women’s rights advocates had laid the groundwork for DECADES, and BECAUSE women members of Congress were there to shepherd it through the long legislative process.” With this added context, Smith’s little “accident” looks a bit more like somebody else’s well-laid plan.

I called Wolbrecht up to find out more. Our conversation has been edited and condensed for clarity.

Rebecca Onion: So Howard Smith, Democrat from Virginia, who inserted “because of sex” into Title VII of the Civil Rights Act, was a segregationist. But he had other commitments that might have motivated him. What were those?

Christina Wolbrecht: Part of this history is just these stories of long alliances. Howard Smith was around 80 years old in 1964. Like a lot of Southern Democrats, he’d been in office forever. His connection with the National Woman’s Party was that he had often been a sponsor of the Equal Rights Amendment in the House. From the time Alice Paul and the National Woman’s Party proposed the ERA in the 1920s, through when it was passed by both houses of Congress and sent to the states for ratification in the early 1970s, the amendment was introduced in almost every Congress.

Why would Smith do this? Between the 1920s and the time Congress was drafting the Civil Rights Act of 1964, the discussion among progressives and women’s rights advocates had to do with what the best way was to guarantee women’s equality. The National Woman’s Party thought the way was to say that men and women should be treated exactly the same in front of the law. But there was a long-standing, well-established tradition coming out of the Progressive Movement, saying that groups that suffered discrimination and faced other barriers needed protective laws that treated them differently, so [for example] that women workers didn’t have to carry as much weight, or work long hours.

In the early 20th century, the Supreme Court basically said that all these attempts by labor unions to get the government to limit hours that laborers have to work, or protect health and safety, were not the business of the government, since that interfered with the “right to contract.” Courts said, If they’re offering x amount of money, for y amount of hours, labor has the freedom to do something else, and it wasn’t the government’s business to intervene.

That’s the ideology of “free labor.”

Right. But in the early 20th century, despite generally refusing the demands of labor, courts did say that governments could pass laws to protect women workers—because they’re supposedly more delicate, fragile, and special. [See the 1908 Supreme Court decision Muller v. Oregon.] The Progressive Movement pushed to pass these kinds of laws that treated women workers differently. The idea was, one day, those laws would be the wedge. One day, you’d get protections for every worker. Which is what eventually happened.

But in the first half of the 20th century, this was a philosophical difference, right? Between some women’s rights organizations and other progressives. Some people thought that something like an Equal Rights Amendment for women, or even just adding “because of sex” to Title VII, would eliminate those protections for women. Would that be better, or worse, for women? That was a question of belief.

So this was the ongoing argument. In the 1950s and 1960s, some people who didn’t support the Equal Rights Amendment weren’t supportive because they were pro-labor, and the ERA was seen as getting rid of these protections. And to be more cynical about it, some people were in opposition because if women were allowed to compete equally with men in the workplace, that might undermine the idea of the “family wage,” lower wages for everyone, and increase the size of the labor pool.

The idea was power might shift from labor to employers, as a consequence.

Right. Now the South was traditionally unfriendly to labor, in the first half of the 20th century. There was lots of strong labor power in the Upper Midwest, the Rust Belt; some businesses would move their factories to the South, because the climate was much more favorable there.

So why would someone like Howard Smith constantly introduce the Equal Rights Amendment? Some of that might have been a commitment, I guess, to women’s equality, but it was more about a Southern Democratic coalition that was looking to undermine labor.

So when the National Woman’s Party tried to get Smith to add “because of sex” to Title VII, they were doing it with the knowledge of his possible motivations to sign on.

Right. The party knew that part of his incentive would be less that he was committed to their cause, and more that this addition might make the bill look ridiculous. Now, they didn’t want the bill to look ridiculous or to fail, but they understood the way you make political change.
You keep introducing things. You keep pushing the idea, until it becomes more accepted and more successful.

There were all sorts of amendments proposed to all sorts of parts of the Civil Rights Act, and one of the interesting things is that the idea of attaching “sex” to other titles of the Civil Rights Act came up, and went nowhere. It’s only this one that Smith introduced for Title VII, specifically about employment, that worked.

The other person in this story was Martha Griffiths, a lawyer and a representative in Congress, from Michigan. Also a Democrat, like Smith—but a Northern Democrat.

Right around the time the party was in its decadeslong process of realignment

Right. Griffiths was the first woman ever to serve on the Ways and Means Committee, and was considered a brilliant strategist who understood the legislative process very well. She was also responsible for tons of women’s rights legislation. She had the idea to add “sex” to Title VII, but she saw an interview where Howard Smith said he was thinking about doing it, and she immediately thought “I’ll let him be the one to do it. He’s going to bring all his Southern Democratic colleagues.” Then Griffiths went around and worked her colleagues to gather their support—the women in Congress who were concerned about this, men too, some Republicans as well.

When Smith introduced the amendment to Title VII, he read this spoof letter from a woman complaining that there are more women than men where she lives, and arguing, “Doesn’t every woman have the right to a husband?” Everyone was laughing—what a huge joke, how silly the idea of women’s equality is … Griffiths stood up and said, If we needed some proof for the necessity of this amendment, this chamber just gave it to us. Pretty much silenced the place.

When the bill went to the Senate, and senators were attempting to fight the amendment, Griffiths went to President Johnson to convince him to support it. Which he did.

A defining feature of the American legislative process is that there are lots of places along the way where you can stop stuff from getting passed. So having an advocate like Griffiths who really focused on keeping the amendment in, through this very contentious process, made a big difference.

Why do you think the story of the amendment gets told the way it does—why does the addition of those words get characterized as something almost random, a chance of history, instead of the product of advocates’ work?  

Honestly, that interpretation comes from evidence from the time period. An example would be that the actual first director of the Equal Employment Opportunity Commission—which was convened to enforce that part of the law—called the provision “a fluke conceived out of wedlock.” Something that wasn’t supposed to be there.

And also, it’s a great story. Right? It’s one of those stories that persist. The idea that these segregationists were trying to kill something, and instead the one addition has been enormous for women. Sexual harassment law is almost entirely based on it. And now it’s opened up protections for LGBTQ people, as well.

But I think the more interesting story is the real story, which is more consistent with what we know about how politics works. Activists who cared about these issues worked on them, proposed them, lobbied for them, developed relationships, made public opinion shift, got people comfortable … they made it happen.

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